9. The normal procedure here would be that the Secretary
of State, on receiving a request for extradition, would issue
a certificate to the effect that the extradition request had been
made in the approved way by a designated category 2 territory,
and would send the certificate to an appropriate (district) judge.
The court would then have power to issue a warrant for the arrest
of the person named in the certificate if it appeared to the judge
that the offence was an extradition offence, and there was evidence
that would justify the issue of an arrest warrant for a person
had the offence been committed within the judge's jurisdiction
(clause 54). An 'extradition offence' for this purpose retains
the 'double criminality' requirement (clause 112). If the person
were arrested, there would be an initial hearing at which he would
be remanded either in custody or on bail, and a date would then
be set for an extradition hearing (clause 57(1)). If the hearing
did not begin by that date, the person would be treated as having
been discharged (clause 57(4)).

10. At the extradition hearing, the judge would have
to decide first whether the documentation was in order, whether
the person before him was the person whose extradition was sought,
whether the offence was an extradition offence, and whether the
person had been served with copies of any required documents.
If the answer to any of these questions was in the negative, the
person would have to be discharged (clause 60). If the answers
were in the affirmative, the judge would have to consider whether
any bars to extradition applied: double jeopardy, extraneous considerations
(extradition being sought for an improper purpose or in a case
where the person might be prejudiced by reason of race, religion,
nationality, or political opinions), passage of time, a physical
or mental condition making it unjust or oppressive to extradite
the person, and a limited bar in cases of hostage-taking (clause
61). If no bar applied, and the person had not already been convicted
of the offence, the judge would have to consider whether there
was evidence which would constitute a case to answer if the trial
were to take place within the judge's jurisdiction (clause 62).[10]
Next, the judge would have to decide whether extradition would
be compatible with the person's Convention rights (clause 65).
If all these issues had been decided in favour of the territory
requesting extradition, the judge would have to refer the case
to the Secretary of State (subject to any appeal to the High Court
and, with leave, the House of Lords against the judge's decision).

11. The Secretary of State would then have to consider
whether he was prevented from ordering the person's extradition
on the ground that the person would face the death penalty, or
because of the principle known to international lawyers as 'specialty',
referred to in the draft Bill as "speciality" (a lack
of any arrangements between the United Kingdom and the requesting
territory to ensure that the person would not be tried for an
offence committed before being extradited, other than the one
for which extradition is requested), or by reason of earlier extradition
to the United Kingdom from another territory (clause 69). If not,
the Secretary of State would have power to order extradition,
subject to a right of appeal to the High Court and, with leave,
the House of Lords on a point of law (clauses 77 and 78). Other
venues of legal challenge to the decisions of the judge or the
Secretary of State, such as judicial review and habeas corpus,
would be unavailable in extradition cases (clause 92). This raises
questions about the adequacy of due process protection, considered
below.

12. Part 3 of the draft Bill is concerned
with the making of requests to other states for people to be extradited
to the United Kingdom. In our view, these provisions do not raise
significant issues relating to human rights in the United Kingdom.
Part 4 contains police powers in respect of people sought
or detained under arrest warrants issued in connection with extradition.
The powers are no greater than those which apply to people arrested
for offences committed in the United Kingdom, and in our view
raise no separate human rights issues. Part 5 contains
miscellaneous provisions which do not seem to us to raise human
rights issues separate from Parts 1 to 4. Accordingly, in this
Report we do not consider matters arising from Parts 3 to 5 of
the draft Bill except so far as they affect Parts 1 and 2.

14. A related point, in respect of extradition requests
by both category 1 and category 2 territories, concerns the removal
of the right to apply for judicial review or habeas corpus. Only
an appeal under the draft Bill would be available to challenge
decisions of the district judge or the Secretary of State.[13]
Judicial review and habeas corpus are important safeguards for
human rights, although ECHR Article 5 and the Human Rights Act
1998 now give even stronger and more effective protection.[14]
Any interference with a person's ability to invoke their procedures
calls for careful scrutiny of the constitutional and human rights
implications. From the human rights perspective, the question
is whether the alternative procedures offer protection which is
at least as effective as that which could be provided by judicial
review or habeas corpus. In this instance, we think that the statutory
appeal contemplated by the draft Bill would be as effective. The
court would be required to consider the compatibility of any decision
by a district judge or the Secretary of State with the Convention
rights of the person whose extradition was sought. If a credible
argument for incompatibility with a Convention right were made,
the onus would be on the party seeking to uphold the impugned
decision to establish its compatibility. The court would have
power to examine all questions relating to compatibility, including
any issue of necessity or proportionality, on the basis of evidence
advanced by the parties, and to make its own assessment (subject
to any deference which might be due to the Secretary of State
on matters of national security). If satisfied that a decision
was incompatible with a Convention right, the court would be required
to substitute its own decision for that of the original decision-maker,
and (if appropriate) to order the discharge of the person whose
extradition was being sought. The standard of review in habeas
corpus or judicial review proceedings would, if anything, be less
rigorous than that. The proposals of the draft Bill would substitute
a duty to give effect to Convention rights for the protection
previously offered by judicial review and habeas corpus. We therefore
conclude that, although this is a significant constitutional change,
the exclusion of judicial review and habeas corpus in these particular
circumstances would not be likely to deprive people of effective
remedies for threatened violations of their Convention rights.

16. Although the extradition procedure itself need
not satisfy Article 6 requirements, it should be noted that any
undue delay in extraditing a person may lengthen the process of
determining the charge. If it contributes to a long-drawn-out
criminal process so that the process leading to the determination
of the charge as a whole violates the right to a hearing within
a reasonable time, it would give rise to a violation of Article
6(1). However, as one purpose of the draft Bill is to streamline
the extradition procedure so as to reduce delays, its impact seems
likely to be beneficial rather than the reverse.

17. In addition, in Soering v. United Kingdom[17]
the European Court of Human Rights left open (obiter) the
possibility that a State could be liable under ECHR Article 6
if it were to extradite a person to a country where he or she
faced a 'flagrant denial of a fair trial' by the requesting state.
The scope of this possibility has as yet not been settled in the
Strasbourg jurisprudence. It would, however, be open to a person
whose extradition was sought to raise the risk of such denial
of a fair trial as a matter which might make extradition incompatible
with his or her Convention rights, and so prevent extradition,
whether to a category 1 territory or to a category 2 territory.
In cases where extradition to a category 1 territory was sought
under a European arrest warrant issued under the Framework Decision
on the European Arrest Warrant, the court would be called upon
to consider the compatibility of the argument with EU law, as
well as the compatibility of EU law with ECHR Article 6. This
could raise complex issues of law which we do not attempt to address
in detail here. Nevertheless, we note that Article 1.3 of the
Framework Decision provides that it "shall not have the effect
of modifying the obligation to respect fundamental rights and
fundamental legal principles as enshrined in Article 6 of the
Treaty on European Union."[18]
Sub-Committee E of the House of Lords Select Committee on the
European Union recommended that the Framework Decision should
explicitly include a provision allowing the court to refuse extradition
where the suspect would not receive a fair trial within a reasonable
time in the requesting state, or where the "judicial authority"
(for example, a juge d'instruction) who issued the warrant
lacked the degree of independence necessary to comply with ECHR
Article 6(1). The Government disagreed at the time, arguing that
the power to avert potential breaches of Article 6 was implicit
in the draft.[19] In
the context of the draft Bill, we consider that the provisions
on Convention rights provide courts in this country with an adequate
basis for refusing extradition where there were indeed such potential
violations. In other fields of application of the draft Bill,
we consider that there would be no significant danger of incompatibility.

18. It is clear from the case-law of the European
Court of Human Rights that the United Kingdom would be responsible
under Article 3 of the ECHR[20]
for extraditing a person to a territory in which he or she would
be liable to suffer torture or inhuman or degrading treatment
or punishment. It is equally clear that the United Kingdom, having
now ratified Protocol No. 6 to the ECHR,[21]
would be responsible under that Protocol for extraditing a person
to a territory where he or she would be liable to face the death
penalty. Furthermore, as noted above, in Soering v. United
Kingdom[22] the European
Court of Human Rights, reasoning by analogy, left open (obiter)
the possibility that a State could be liable under ECHR Article
6 if it were to extradite a person to a country where he or she
faced a 'flagrant denial of a fair trial' by the requesting state.
It remains to be seen what other Convention rights, if any, may
operate effectively as a bar to extradition in relation to particular
states or territories. One can at least say that the treatment
awaiting the person in the requesting territory would have to
be considered by the court if there were any doubt about the matter.

19. Clauses 17 and 65 of the draft Bill would require
the District Judge to consider the impact of extradition on all
the suspect's Convention rights, and to order the suspect's discharge
if there were to be a threat to them. This seems to us to provide
adequate protection for Convention rights.

21. It is noteworthy that the draft Bill would expressly
maintain the exception in relation to offences under the military
law of a requesting category 2 territory which do not constitute
an offence under the general criminal law of the United Kingdom.[23]
No such express provision is made in relation to category 1 territories,
although the conduct constituting an extraditable offence for
this category of territories under clause 47 of the draft Bill,
which incorporates (inter alia) the list of conduct set
out in article 2.2 of the European framework decision, does not
appear to include conduct which would amount to an offence under
military law but not under general criminal law. By contrast,
there seems to be nothing in the draft Bill to protect people
against extradition of an offence of a political character to
either category 1 or category 2 territories. Clause 61 would provide
bars to extradition to protect people against being extradited
to category 2 territory for the purpose of prosecuting or punishing
him on account of his race, religion, nationality or political
opinions, or in circumstances where the person might be prejudiced
at trial or punished, detained or restricted in his personal liberty
by reason of his race, religion, nationality or political opinions.
This might be sufficiently wide to bar extradition to category
2 territories for political offences. However, there is no similar
protection in relation to extradition to category 1 territories.

22. If an Order in Council were to be made under
clause 165 of the draft Bill to repeal section 6 of the 1989 Act,
it would, on the face of it, remove all these protections in respect
of extradition to category 1 territories, and would remove express
protection against extradition to category 2 territories to face
prosecution for political offences.[24]
As the draft Bill stands, such an Order would be subject only
to annulment by resolution of either House of Parliament. It might
be possible to argue that such extradition would be unlawful if
it were also to be incompatible with Convention rights, as the
draft Bill makes compatibility with those rights a necessary condition
for extradition.[25]
But in respect of the right to hold and express political opinions
free from interference by a public authority under Article 10
of the ECHR,[26] the
requesting territory could argue that the interference was justified
under Article 10(2), for example as being a necessary and proportionate
restriction to prevent crime or to protect the rights of others.
There is a reluctance to allow discussion in extradition proceedings
of the extent to which conduct falling within the scope of the
European arrest warrant constitutes a political offence, but some
of the conduct, including some terrorism and racism and xenophobia,
is particularly likely to be political. While it may sometimes
be legitimate to regard conduct of this kind as falling outside
an exception for political offences, we doubt the wisdom of allowing
the Government to deprive everyone who might be extradited of
their protection, and to do it by way of an Order in Council amending
primary legislation. No such change is required by the Framework
Decision, as paragraph (12) of the Preamble to, and Article 1.3
of, the Decision make clear.[27]
We consider that any such change would be a matter of considerable
significance for human rights, particularly the right to hold
and express political opinions. We reiterate our view that any
amendment should be expressly contained on the face of the Bill,
so that it can be properly debated.

26. The procedure whereby the requesting territory
provides written assurances was introduced after Soering v.
United Kingdom.[28]
We consider that it is likely to be regarded, at least for the
foreseeable future, as meeting the state's obligations under Protocol
No. 6. The duty of the state not to extradite people to countries
where their human rights are under threat is a form of positive
obligation: the state is required to protect people against a
threat to their rights from people in another state, either by
not extraditing the person to that territory or by demanding and
receiving satisfactory assurances from the requesting state. Nonetheless,
we draw attention to two matters concerning the way in which the
draft Bill deals with such assurances.

27. First, the draft Bill makes express provision
for such assurances to be accepted only in relation to the death
penalty. However, the Soering case, on the basis of which
the assurances are currently sought, was concerned with the right
to be free of inhuman or degrading treatment under ECHR Article
3, not the right to be free of the death penalty under Protocol
No. 6. As the United Kingdom had not at that stage ratified Protocol
No. 6 on the death penalty, the applicant argued that long
periods spent on death row awaiting execution (the common lot
of people convicted of capital murder in the USA) amounted to
inhuman or degrading treatment under Article 3. As the obligation
of the state in respect of human rights abuses in other territories
is a positive obligation, the state's duty is to take adequate
steps to prevent people from being put in a position where their
rights are at risk. In principle, this could apply to any Convention
right. It is not easy to see why the draft Bill mentions it only
in respect of the death penalty. The answer may be that the judge
or Secretary of State would be permitted to accept such assurances
in relation to other threats to Convention rights, but would not
be under an obligation to refuse to extradite the person if no
such assurances were received. But if this is intended to be the
case, the Government should explain why it has not been included
expressly on the face of the draft Bill. The state's obligations
in this regard are not limited to the death penalty, whether under
the ECHR or the Framework Decision. We draw attention to paragraph
(13) of the Preamble to the Framework Directive, which states:
"No person should be removed, expelled or extradited to a
State where there is a serious risk that he or she would be subjected
to the death penalty, torture or other inhuman or degrading treatment
or punishment." We recommend that the Government should
give further consideration to this matter, with a view to including
express provision on the face of the Bill for the Secretary of
State to accept appropriate assurances from or on behalf of requesting
territories in respect of safeguards for rights other than those
relating to the death penalty, especially torture and other forms
of inhuman or degrading treatment or punishment.

28. Secondly, it is not always easy to be sure whether
the assurances should be regarded as adequate. The authority in
the requesting territory which gives the assurances may not be
in effective control of the matter in question, either because
of division of powers within a federal or quasi-federal structure
or because of political or social instability. For example, while
only federal authorities in the USA are in a position to give
assurances on the international plane, non-federal criminal law
(including, in a good many states, capital murder) is a state
matter, and state courts and governors have not always been willing
to give effect to the wishes of federal officers in connection
with the imposition of the death penalty in individual cases.[29]
The Secretary of State would need to assess carefully the ability
of the person or body giving an assurance to ensure that it will
be honoured. We hope that the Government will give an indication
of its thinking on this matter, and particularly the factors relevant
to making that assessment, whether generally or in relation to
particular cases or countries.